HOOPER v. MOSIER et al
ENTRY FOLLOWING DAMAGES HEARING - Defendants are liable to Hooper in the amount of $40,900.00 for actual damages and the amount of $43,645.32 for attorneys' fees. Accordingly, Defendants' total liability to Hooper is $84,545.32. Final judgment will issue under separate order. See entry for details. Signed by Judge Tanya Walton Pratt on 10/12/2017. (MEJ)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KEN MOSIER, and THE FINER DETAILS LLC,
Case No. 1:16-cv-01385-TWP-DML
ENTRY FOLLOWING DAMAGES HEARING
This matter is before the Court following a damages hearing. On January 12, 2017, Plaintiff
Jack Hooper (“Hooper”) filed a Second Amended Complaint against Defendants Ken Mosier
(“Mosier”) and The Finer Details, LLC (collectively, “Defendants”), asserting violation of the
Indiana Deceptive Consumer Sales Act, Indiana’s Senior Consumer Protection Statute, as well as
conversion, fraud, breach of oral contract, breach of written contract, detrimental reliance, unjust
enrichment, and piercing the corporate veil. (Filing No. 44.) On March 23, 2017, the Clerk of the
Court entered default judgment against Defendants for failure to plead or otherwise defend in this
action. (Filing No. 52.) Thereafter, on April 24, 2017, the Court also entered default judgment
against Defendants and scheduled an evidentiary hearing on damages. (Filing No. 64.) On
Monday, July 31, 2017, the Court held a damages hearing. Hooper appeared by counsels Annavieve
C. Conklin and Kathleen Ann DeLaney. Defendants appeared by counsel Gary Marksberry.
Hooper alleges damages in the amount of $345,568.10. The Court now makes its findings of fact
and conclusions of law concerning Hooper’s damages claim.
FINDINGS OF FACT
In 1963, Hooper and his father bought a new 1963 Plymouth Sport Fury (“the Sport Fury”).
In 2011, Hooper became interested in having the Sport Fury fully restored so that he could drive it
to his fiftieth high school reunion in June 2015. In mid-2011, Hooper communicated with
Defendants regarding restoration of the Sport Fury. On August 18, 2011, prior to viewing the Sport
Fury, Defendants told Hooper that restorations typically take one year and could cost an estimated
$40,000.00 to $50,000.00 to complete. The parties did not enter into a written contract; however,
on September 15, 2011, Hooper paid Defendants an initial $4,000.00 deposit to restore the Sport
Fury for his fiftieth reunion.
At some point during the restoration process, Defendants learned of latent, unanticipated
defects in the Sport Fury, including: the engine did not start and there were holes in the floor pans.
After consulting with Hooper, Defendants restored the Sport Fury’s floor pans and the engine,
among other things. This escalated the costs of restoration. To reduce the increased costs,
Defendants lowered their rates from sixty-five dollars per hour to ultimately twenty-five dollars per
hour and suggested Hooper buy the parts and materials himself with Defendants’ discount. (See
Hearing Ex. 101.) Between September 15, 2011 and June 1, 2015, Hooper paid Defendants a total
of $86,487.00, as well as $13,574.39 for parts and materials. Id. Defendants did not complete the
Sport Fury’s restoration by June 5, 2015, and Hooper was not able to drive the Sport Fury to his
fiftieth high school reunion.
Thereafter, on August 5, 2015, Hooper’s counsel sent a demand letter to Defendants
requesting no further cost to Hooper except for parts necessary to finish restoring the Sport Fury
and to deliver the complete car to Hooper on or before October 1, 2015. Defendants informed
Hooper that they could no longer restore the Sport Fury without any profit. On October 6, 2015,
Hooper paid $2,000.00 to have the dismantled Sport Fury transported from Defendants’ shop in
Indiana to Brian’s Paint & Body Shop (“Brian’s”) in Sharpsburg, Georgia. While at Brian’s, Chuck
Vaughn (“Vaughn”)—an engine technician—conducted an engine inspection and determined that
the crankshaft in the Sport Fury’s engine was in poor quality and the oil pan was not original to the
car. Vaugh completely rebuilt the Sport Fury’s engine with replacement parts for $4,400.00 and
opined that the worth of the engine decreased by $20,000.00 without the original crankshaft and oil
pan. Hooper then paid Brian’s an additional $37,000.00 to finish restoring the Sport Fury.
Hooper alleges Defendants are liable for: $148,461.39 in actual damages; $148,461.39 in
double damages under the Indiana Senior Protection Act; a $5,000.00 civil penalty under the
Indiana Senior Consumer Protection Act; and $43,645.32 in attorney fees, which are available
under the Indiana Deceptive Consumer Sales Act and the Indiana Senior Consumer Protection Act.
CONCLUSIONS OF LAW
As an initial matter, Hooper is not entitled to double damages or a civil penalty under the
Indiana Senior Protection Act because Defendants did not “knowingly and by deception … obtain
control over the property of a senior consumer.” See Ind. Code § 24-4.6-6-4. Hooper willingly
permitted Defendants to restore the Sport Fury and continued to pay the costs of restoring the car
despite it exceeding the initial estimate of $40,000.00 to $50,000.00.
With respect to the remaining alleged damages, Hooper submitted a summary showing he
$86,487.00 to Defendants for restoration expenses;
$13,574.39 for parts and materials;
$2,000.00 to transport the Sport Fury to Sharpsburg;
$4,400.00 to Vaughn for engine inspection and rebuild; and
$37,000.00 to Brian’s for completing restoration.
(Hearing Ex. 101.) Hooper also alleges $20,000.00 in damages for the decrease in value of his
engine without the original parts, offset by $15,000.00—the alleged estimated value of the work
actually performed by Defendants. These costs total $148,461.39.
Despite Hooper’s contention that Defendants owe $86,487.00 for the amount Hooper paid
to restore the car, as well as Hooper’s contention that Defendants performed only $15,000.00 worth
of work, Hooper did not designate any evidence to dispute that he received the services charged by
Defendants. Hooper also testified that the $13,574.39 for parts and materials costs were reasonable.
Accordingly, the Court reduces Hooper’s alleged damages from $148,461.39 to $48,400.00 because
Hooper received the benefit of these expenses. The Court also deducts $7,500.00—the cost to
rebuild the engine and the offset of the alleged decrease in value of the engine—because Defendants
previously repaired the engine and reinstalled the original crankshaft. Defendants also returned the
oil pan that it received from Hooper. Accordingly, the Court concludes that Hooper’s actual
damages total $40,900.00—the $2,000.00 in transport costs, the remaining engine inspection costs,
and the $37,000.00 Hooper paid Brian’s to complete the restoration.
Hooper also requests $43,645.32 in attorney fees. Hooper testified that he paid the fees in
its entirety and that the fees are reasonable. Defendants did not present any evidence challenging
Hooper’s contention; accordingly, the Court grants Hooper’s request for attorneys’ fees.
For the above reasons, Defendants are liable to Hooper in the amount of $40,900.00 for
actual damages and the amount of $43,645.32 for attorneys’ fees. Accordingly, Defendants’ total
liability to Hooper is $84,545.32. Final judgment will issue under separate order.
Annavieve C. Conklin
DELANEY & DELANEY LLC
Gary Jayson Marksberry
MARKSBERRY LAW OFFICE, LLC
Kathleen Ann DeLaney
DELANEY & DELANEY LLC
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